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A significant contribution to thinking on climate change legal issues was recently published by the International Bar Association (IBA): a report entitled Achieving Justice and Human Rights in an Era of Climate Disruption[1]. The centre-piece of the Report’s release was a forum on 21 October 2014 at the IBA’s annual conference in Tokyo[2]. The Report contains a wide range of recommendations for the short, medium and long term. It proposes measures relating to international dispute resolution and various detailed legal initiatives which will require new domestic legislation. It also covers such diverse subjects as food security and the ethical responsibilities of industry.

Among other things, the Report recommends that in the longer term, states consider recognising as a free standing human right, a safe, clean and healthy environment. Unsurprisingly, the Report devotes some analysis to the relationship between human rights and the environment. This is a subject that arises in the context, for example, of small, low lying island states such as Tuvalu and the Maldives, whose former President Mohamed Nasheed spoke passionately at the conference and famously held an under water cabinet meeting to publicise his concerns.

While the outlook of the IBA Report is international, many of the detailed recommendations will need domestic legislation and may accordingly stimulate thinking on many of the issues and problems associated with climate change law, referred to earlier. For example, the report recommends the drafting of a model statute on legal remedies for climate change and encourages states to enact domestic procedural and substantive law to adopt the statute. An IBA Working Group has been established to draft the model statute.

Climate change law has not been an area of vibrant development in recent years, at least in Australia, except for the town planning context. The quieter subcategories of climate law, include:

commercial documentation relating to ‘renewables’, for example wind farms and the clean development mechanism;

applying civil liability concepts, in particular relating to causation, from the law of torts, for example negligence;

carbon pricing, taxation and emissions trading; and

international disputes, for example between countries that stand to lose territory or in the case of the Maldives, disappear with rising sea levels.

There are several reasons why aspects of climate law have been somewhat of a struggle for lawyers. The question of causation in civil claims raises difficulties. For example, there is hard evidence on declining rainfall in the South West of Western Australia. However, proving the cause in law is not an exercise easily addressed by established principles, developed in a social and legal environment uncomplicated by the variables of climate change. Point source pollution, for example, has been a source of legal action in the tort of nuisance since the start of the industrial revolution in Britain. In those cases, the agent causing damage-for example a ‘smoke stack’ industrial operation-was relatively easy to identify. In contrast, evidence of climate change relies heavily on modelling, an approach fraught with potential debate over the model and the assumptions behind the input data[3]. Identifying particular parties with potential legal responsibility for damage, is very difficult.

In respect of carbon taxing and related areas, including emissions trading, the prime difficulty has been lack of consistency in Government policy and legislative initiatives, which was recently manifested in the abolition of the carbon tax and emissions trading scheme by the Commonwealth.

Even the legal characterisation of green house gaseous emissions has been a source of debate. The emissions trading legislation of the previous Australian Federal Government labeled carbon emissions as ‘pollution’, which troubled those who would argue that a naturally occurring compound like carbon does not fit the established legal concept of pollution, a subject which received considerable attention in the leading Western Australian case of Palos Verdes Estates v. Carbon[4].

The Western Australian Environmental Protection Act 1986 shows its age when it comes to climate change. There is no clear climate change trigger for an environmental impact assessment under Part IV and mention has already been made as to whether climate change agents such as carbon can be properly described as ‘pollution’, under Part V.

The Report’s detail, rigour and focus on practical outcomes combine to make it an important contribution to the learning on climate change law. It effectively establishes a programme of objectives and action for the IBA on climate change and related human rights issues for the short, medium and long terms. The production of a model climate change statute will be awaited with great interest by a wide range of parties.

[2] Chaired by Baroness Helena Kennedy QC, with contributions from former US Vice President Al Gore, the former Irish President Mary Robinson, Justice Brian Preston, Chief Judge of the New South Wales Land and Environment Court and two members of the IBA’s Environment Health and Safety Committee, David Estrin and Conor Linehan.

[3] This has been the experience of the author in the use of models in other areas, such as odour and valuation law.